
AN AHTICLE PHEPAKED FOR THE “CY^’LOP^DIA OF POLITICAL SCIENCE, POLITICAL ECONOMY, 
AND OF THE POLITR AL HISTORY OF THE UNITED STATES/' 

EDITED RY JOHN J. LALOR. 


REPRINTED FOR AUTHOR’S PRIVATE DISTRIBUTION. 


('HICAGO : ^ 

MEL BERT B. CARY A CO, 
1888 . 




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LEGISLATION. 


751 


than in antiquity. People did not recognize the 
right of every man to work, and still less, the 
right to work when he pleased; and, what was of 
much more consequence, they professed that the 
king held a strict control over his kingdom, and 
would not allow one class to encroach on the 
rights of another, or to change the rank assigned 
to it by ancient custom, “The said lord the 
king,” we read in an ordinance of 1577, “being 
duly informed that the great superfluity of meat 
at weddings, feasts and banquets, brings about 
the high price of fowls and game, wills and 
decrees that the ordinance on this subject be 
renewed and kept; and for the continuance of 
the same, that those who make such feasts as 
well as the stewards who prepare and conduct 
them, and the cooks who serve them, be punished 
with the penalties hereunto affixed. That every 

• sort of fowl and game brought to the markets 
shall be seen and visited by the poulterer-wardens, 
in the presence of the officers of the police and 
bourgeois clerks to the aforesaid, who shall be 
present at the said markets, and shall cause a 
report to be made to the police by the said ward¬ 
ens, etc. The poulterers shall not be allowed to 
dress and lard meats, and to expose the same for 
sale, etc. The public shall be likewise bound to 
live according to the ordinance of the king, with¬ 
out exceeding the limit, under penalty of such 
pecuniary tines as are herein set forth against the 
innkeeper, so that neither by private understanding 
nor common consent shall the ordinance be violat¬ 
ed.”—The world to-day lives in a different order of 
ideas, and when we read the ordinances of French 
kings, we find them no less strange than the an¬ 
cient laws: they seem to us to apply to a social 
condition in which each laborer was a civil officer, 
as in the empire of Constantine. These ordi¬ 
nances are nevertheless the history of but yester¬ 
day, the history of the eve of the French revolu¬ 
tion, and we are still dragging heavy fragments of 

• the chain under which our fathers groaned. But 
ideas and sentiments have gone far in advance of 
facts: we have difficulty in comprehending the 
intervention of the government in the domestic 
affairs of families, and in contracts which concern 
only private individuals. As to luxury, it can 
not disturb classes, in a society where all are on 
a level, and it can not do much harm if the law 
of labor is respected, if rapine can not become a 
means of acquiring property. — Since the revolu¬ 
tion, no sumptuary law has been enacted in 
France, and yet the luxury of attire which for¬ 
merly distinguished the nobility has disappeared. 
A duke dresses like anybody else, and he would 
be ridiculed if he sought to distinguish himself 
by a manner of dress different from others. Such 
•is sumptuary law in our time. Any one who 
should try to make himself singular by particular 
garments or an exceptional mode of life, would 
be immediately noted, not as a dangerous citizen, 
but as a ridiculous fellow. Opinion has undergone 
an entire revolution. Private expenses are mean¬ 
while increasing, and this increase, too, is pretty I 


rapid. They can not, however, depart far from 
uniformity* vain prodigalities can not be a title 
to glory in a society where the law of labor is 
recognized, and the one who will surrender him¬ 
self to them, however rich he may be, is forced by 
public opinion to wear a certain modesty, even in 
his greatest excesses. Sumptuary laws can no 
longer be proposed. We need not think the honor 
of the change is due to our wisdom, to our pre¬ 
tended superiority to the ancients; let us simply 
recognize, (and it is in this that progress consists), 
that the essential principle of society has changed: 
the world moves on another basis. — When the 
Roman people had, in despite of the observations 
of Cato, abrogated the Qppian law against the 
luxury of women, Cato, who had become cen¬ 
sor, attempted to have it revived in another 
form. He included in the census, that is, in the 
valuation of the wealth of the citizens, jewels, 
carriages, the ornaments of women and of young 
slaves, for a sum ten times their cost, and imposed 
a duty on them of or of the real price. 

He substituted a sumptuary tax for a sumptuary 
law. The moderns have done as did Cato. After 
the sumptuary laws had become a dead letter, 
they imposed taxes on the consumption of luxu¬ 
ries. England has taxes on carriages, on servants, 
on armorial bearings and on toilet powder. So 
far as political economy is concerned, these taxes 
are irreproachable; but they bring little into the 
treasury, and have scarcely any influence on con¬ 
sumption or on morals. 

CoURCELLE - SeNEUIL. 

LEGAL TENDER. (See Comb^sory Circu¬ 
lation.) '/ 

LEGISLATION is the exercise of that part 6^ 
the sovereign power which promulgates new laws; 
modifies and repeals old laws; gives to ethical 
convictions their crystallized form by expressing 
in apt language the conception of society as to 
what constitutes offenses, and prescribes their 
punishment; formulates how contracts should be 
made and observed; and regulates the affairs of 
men in their relations with the state and with 
each other. In this concrete form it is the expres¬ 
sion of the will of the law-making power of the 
community, behind which stands its administra¬ 
tive machinery to enforce that expression of will 
by punishment for its infraction, or by changing 
relative rights and duties, if the law applies to 
matters of contract instead of matters of penal 
law. The legislation need not necessarily ema¬ 
nate from a legislative body. A convention of 
the people, either directly or through representa¬ 
tive bodies other than legislatures, formulates and 
establishes the highest laws in any given commu- 
nity by the organic distribution of powers in a na¬ 
tion or community in the shape of a constitution. 
This is fundamental legislation. All other leg¬ 
islation of the community is subsidiary to it. 
There is a considerable amount of legislation 
done by judges in their interpretation of katutes, 





752 


LEGISLATION. 



or in the application of general principles to new 
cases, which we may for the present leave out of 
sight, because while judge-made law is law, it does 
not, in ordinary parlance, come under the head of 
legislation. It is referred to here for the purpose 
of drawing attention to the fact that the legisla¬ 
ture is not the only source of law. In European 
countries a large proportion of what occupies 
wliat is ordinai'ily termed legislation in the United 
Slates falls under the head of administrative re¬ 
scripts, which have tlie force of law. Each par¬ 
ticular minister in the constitutional governments 
of Germany, Prance and Italy has the power to 
make administrative regulations for the depart¬ 
ments under his control, which have the same char¬ 
acter as, and indeed are not distinguishable from, a 
great part of the laws which encumber the statute 
books of the United States. For instance, all that 
class of legislation which grants charters of cities 
and governments for counties, and changes their 
nature from time to time, would all come under 
some ministerial department and be regulated and 
changed or modified, as the case might be, with¬ 
out an}" appeal to the general legislative body. By 
reason of this and kindred large bodies of regula¬ 
tions emanating from executive officers, the legis¬ 
latures of those countries are but little encum¬ 
bered with the questions that vex and worry us, 
which come under the head of local and special 
laws that form the bulk of the statutes annually 
enacted in the United States; but, on the con¬ 
trary, the legislative bodies of those countries are 
freer to devote their attention to the general legis¬ 
lation of the community, because it is not prop- 
ei’ly deemed legislative work to regulate the ad¬ 
ministrative machinery of the minor administra¬ 
tive organizations of the community. — The 
legislative bodies of the United States have been 
modeled upon those of England. In every state 
of the Union there are two legislative houses cor¬ 
responding to the senate and house of representa¬ 
tives of the national legislative body, and to the 
house of lords and house of commons of the 
English parliament. The senate is the house of 
greater dignity and smaller numbers, the dignity 
arising from the longer term of office and the 
greater comparative power of each individual 
legislator because of the larger district which 
elects him, — The theory upon which legislation 
proceeds from a law-making body is, that that 
body is placed in a situation of such altitude above 
the surrounding individual and personal interests 
of the community, that its members can see gen¬ 
eral interests as contradistinguished from personal 
interests, and by general regulations denominated 
laws hold the special and personal interests in 
check and compel them to work harmoniously 
for the public weal. In so far as that theory is car¬ 
ried into practice the laws that emanate from such 
bodies are, unless proceeding from a wrong point 
of view, generally wholesome and beneficial. If 
the organization of the legislative body,or the prac¬ 
tice which has in time grown up in its procedure, 
results in the domination of individual or per¬ 


sonal interests instead of the general public weal, 
the laws of that community, received from such 
a body, are sure to be inharmonious and mis¬ 
chievous. — Laws divide themselves naturally into 
organic laws, into general legislation, special legis¬ 
lation, public legislation, and local legislation. — 
The subject of legislation is the whole domain of 
human activity. Whether it shall extend its field 
into any particular branch of human activity, or 
leave it free to the natural law which would in the 
absence of such legislation regulate it, is a ques¬ 
tion of expediency, the consideration of which 
b('longs to a different branch of the science of 
government from that which we are called upon 
to treat of herein.— Organic laws are the laws made 
by the sovereign, by which governmental powers 
are distriljuted and prerogatives which belong to 
the sovereign are delegated to agents, either for a 
definite period or for all time. These organic 
laws may emanate, like magna charta, from the 
king; they may be the result of a determination 
of the sovereign, as represented by the imperial 
crown, to associate with itself in the exercise of 
legislative and judicial powers, a larger number of 
subjects than had theretofore been consulted with 
reference to matters of government, (in such man¬ 
ner have European governments gradually devel¬ 
oped into constitutional monarchies); they may 
be the result of revolution and civil strife, whieli 
throws the sovereign power back into the hands 
of the people; or they may, by constitutional con¬ 
ventions as in America or constituent assemblies 
as in France, exercising that sovereign j)ower, 
represent the sovereign for the time being, and 
in such representative body formulate and ])i()- 
mulge a constitution, placing sovereign power, 
in their subdivisions of executive, judicial and 
legislative authority, in individual hands, and 
prescribe the limits within which such author¬ 
ity is to be exercised. These organic laws are 
generally declared to be for all time, but subject 
to amendment in a manner prescribed by the 
organic law itself. — The ultimate sovereignty of 
the community rests in its people. Whether they 
are to exercise that ultimate sovereignty in the 
form of a constitutional convention or in some 
more constantly acting form, is a question vvitli 
reference to which it is not needful to lay down 
rules, as the exercise of that power comes into 
life, as a general rule, as the result of some gi'cat 
civil strife, or some great crisis, and the neces¬ 
sities that have called it into being prescribe the 
limitations and form within which the sovereign 
exercises its power. To these organic laws con¬ 
stant reference must be made for the purpose of as¬ 
certaining the powers of the legislature that it calls 
into being, and it is almost needle.ss to say that 
whatever contravenes the organic law is void, 
as being beyond the scope of the authority 
deputed to the legislative body, and therefore 
of no effect; in other words, is unconstitu¬ 
tional legislation. — The laws which are not or¬ 
ganic emanate from the legislative body, which 
is itself created by the organic law. The distin- 



LEGISLATION. 


753 


guishing feature between organic laws and legis¬ 
lative laws is, that one legislature can not bind 
the hands of another upon general public ques¬ 
tions. In the United States it, has been, however, 
held* that a legisliitive measure mfiy create a con¬ 
tract which it is not in the power of atiother legis¬ 
lature to break without the consent of the other 
contracting party, but this limitation upon the 
power of the legislature arises solely from the 
fact that the constitution of the United States 
puts a limitation in that particular upon the state 
legislative power in declaring that no state shall 
pass any law impairing the obligation of a con¬ 
tract, which also includes inviolability as to its 
own contracts. — Public Legidutioii. It is the duty 
of the law-making powder to see to it that the law^s 
of a community shall be readily understood, shall 
be harmonious, and shall press as little as possible 
upon proper legitimate individual enterprise; 
that all remedial legislation shall be adapted to 
its ends, and shall be clear in expression; that all 
criminal legislation shall define crimes in conform¬ 
ity with existing facts; shall keep pace with the 
perverse ingenuity of mankind in the discovery 
of new methods of appropriating other people’s 
property under the form of legitimate business; 
and shall prescril)e ])unishments of a definite 
character. All legislation wddch irritates and 
does not punish is useless and mischievous legis¬ 
lation. All legislation is as to form subject to 
rules which can not safely be neglected by the 
legislator, and the disregard of wdiicli has resulted 
in infinite mischief to society. The elements of 
every legislative expression consist, 1, in the de¬ 
scription of a legislative subject; 2, in the enun¬ 
ciation of the legal action; 3, in the description 
of the case to wdiich the legal action is limited; 
and 4, the precedent conditions on the perform¬ 
ance or doing of which the legal action operates. 
— Legal Subject. The definition of the person, 
artificial or natural, who may or may not do a 
particular thing, wdio shall or shall not refrain 
from doing a particular thing; and this subject 
should he clearly defined. The legal action is a 
definition of the right, the privilege or the power, 
or the obligation or liability granted to or imposed 
upon the legal subject. The description of the 
case to which the legal action is limited, is a set¬ 
ting forth of the state of facts which shall create 
the conditions applicable to the legislative sub¬ 
ject, and which shall call into being the right, 
privilege, obligation or duty. The conditions 
on which the legal action becomes operative 
are invariably conditions precedent, because a 
law, although universal as to its subjects and 
unrestricted as to cases, can nevertheless be¬ 
come operative only upon the performance or non¬ 
performance of certain conditions. Example: 
Subject, all persons born in this state above 
the age of twenty-one; action, shall have the 
right to vote; description, at all elections to be 
held for judges of court of appeals; condition 
precedent, if they shall have registered twenty 
days before the date of such election. A law 
101 VOL. II.— 48 


may embrace any number of subjects, actions, 
descriptions or conditions precedent, may fill a 
volume, and yet the law will be combinations, in 
one form or another, of these simple elements. 
The first duty, therefore, of the law maker in 
relation to a law% after having determined upon 
its usefulness, is to see whether these various 
elements of the law into which it may be resolved 
are correctly described and follow each other in 
their natural order.— Legislative Methods. The 
cunstitutions of the states of this Union enjoin 
upon the legislative body many conditions, upon 
the proper performance of which their legislation 
will depend as to its constitutionality. Tax laws 
are required to be passed by a certain majority; 
bills are required to be read a certain number 
of times, either by their titles or read through; 
journals are to be kept; ayes and noes are to be 
entered therein; a certain number of ayes are 
requisite for certain kinds of legislation; and in 
many other particulars the form of legislation is 
prescribed. The legislative body is required to 
organize committees; to sit a certain number of 
days; and to follow certain forms as to methods of 
enactment. A vast body of rules has been adopt¬ 
ed by the legislative.assemblies of this country by 
which their deliberations are governed. Forms 
are prescribed as to the manner in which bills are 
to be introduced; what committees are to be ap¬ 
pointed; how the speaker is to be elected; what 
powers he is to exercise; how debate is to be 
regulated; how communieations between the two 
branches of the legislative body, and between 
them, or either of them, and other bodies or the 
executive, are regulated and carried on; how 
witnesses nre to bo examined; petitions introdu* ed 
and acted upon ; and divisions determined. Com 
mittees are required to reiwrt in a i)articular 
manner, and the various stages through which a 
bill passes are carefully prescribed by such rules 
and are generally followed. The power of 
amendment is subject to rules; and even the 
debates, both as to the time which each individual 
speaker is to occupy and the license he is to have 
in debate, are subjected to regulation. It would 
be a mere repetition of any one of the numerous 
manutds of rules to set forth with greater particu¬ 
larity what these rules are. It may be conceded 
that they are necessary for the purpose of govern¬ 
ing the presiding oflicer’s action, so that his rulings 
shall not be arbili’aiy, and to give method and 
sy!^tem to the conduct of - the deliberative body. 
These rules are so numerous and so complex, that 
a leading member of congress stated that it takes 
at least one session of congress for an intelligent 
and diligent member to learn the rules so that he 
may take part in. the debate with etliciency. A 
great part of the time of every deliberative body is 
taken up with questions arising under the rules, 
and perhaps necessarily so. This is all subtracted 
from the necessary work of the session. Freedom 
of debate has ever been regarded as one of the 
essential requisites of a deliberative body. In the 
United States this freedom of debate has, however, 




754 


LEGISLATION. 


# 


been for a considerable number of years sub¬ 
jected to the limitations of the rule known as 
the 'premom question, a motion which, if sup¬ 
ported by a sufficient number of the majoiity, 
is made for the purpose of cutting short debate 
and to compel the presiding officer to put the 
main question at once with the view promptly 
to ascei’tain the will of the house. The French 
have in their deliberative bodies recognized the 
same rule by a motion for a cloture, or close 
of the debate. In the English parliament this 
rule has not until recently prevailed. It was 
only in consequence of the power exercised by 
the Irish members on questions affecting the 
Irish people to prevent legislation by obstructive 
motions and speeches, that compelled the adop¬ 
tion of a rule somewhat analogous to the previous 
question in the United States and the cloture of 
France, in a motion of urgency of public business, 
which the government may make and which upon 
the support of two-thirds of the house closes the 
debate.—The rules adopted in the United States 
as to methods of enactment are quite inade¬ 
quate to meet the necessities of modern legis¬ 
lation; and there is not a stale in the Union in 
which the complaint is not well grounded that the 
laws passed by the legislative bodies are slipshod 
in expression, are inharmonious in their nature, 
are not .Subjected to proper revision before their 
passage, are hurriedly passed, and impose upon 
the governors of the states a duty not intended 
originally to be exercised by them, that of using 
the veto power in lieu of a board of revision for 
the legislative body; and so badly is the guberna¬ 
torial office organized for any such purpose that 
the best intentioned governor is compelled to 
permit annually a vast body of legislation to be 
put upon the statute book, which is either unnec¬ 
essary, in conflict with laws not intended to be 
interfered with, or passed for some sinister and 
personal ends. — In the United States there is no 
such thing as real responsibility for the legislation 
of the session lodged anywhere. Neither in con¬ 
gress nor in the various states is the duty imposed 
upon any individual or body of men to formulate 
and to propose public legislative measures. The 
party in power is supposed to be responsible in 
some degree for the legislation of a session, but 
in no state in the Union nor in congress does the 
political party in the ascendency consider itself 
charged with the public legislation of a session 
except ill so far as it may have made specific 
pledges in party platforms as to the redress of 
some grievance. Under our system of government 
it frequently happens that one party has a major¬ 
ity in one legislative body while the other party 
has a majority in the other legislative body, or 
that the party having conti-ol of both chambers 
of the legislature has no control of the executive, 
and as both houses and the governor must com¬ 
bine to create a law, all responsibility for legisla¬ 
tion is, in such cases, lost by being thus divided. 
In constitutional monarchies, such as England, 
the ministry are charged with the duty of initiat¬ 


ing public legislation. The absence of any min¬ 
istry in the states of the Union having relation to 
the legislature, imposes the task of proposing 
and formulating laws, either upon private indi¬ 
viduals imbued with public spirit, upon others 
seeking to use the law for their personal ends, or 
upon the individual members of the legislature 
seeking to obtain some benefit for their constitu¬ 
encies, possibly for the state, or for some private 
interests that move them. As there is no con¬ 
sultation between the members of the legislature 
before they meet in session, by which they might 
as a body become animated by an esprit cle corps 
for the promotion of certain legislative measures 
during the course of the legislative year, the con¬ 
sequence is, that from the opening of the legis¬ 
lature until its close each individual member 
proposes whatever law he pleases; it is put into 
the legislative hopper to be sent to its respective 
committee, and each important committee has, 
during the course of a legislative session, many 
times the measures, thrust upon it for exami¬ 
nation and report, that it can with anything 
like care or deliberation consider, even if it 
were, as is not generally the case, thoroughly 
competent to perform legislative work. This 
absence of responsibility as to public legislation, 
and the promotion of such legislation exclusively 
by individual action, have created a degree of 
mischief quite beyond computation. And when 
the resources of the country shall have been more 
thoroughly exploited, and by the growth of wealth 
and the intricacy of social organization changes 
in the law become more mischievous and far 
reaching than now, we shall be forced to adopt 
in all our methods of legislation a change so 
great that it wdll be well nigh revolutionary in 
character, by creating in every state in the Union 
either a council of revision or a ministerial body 
charged with the duty of formulating and pro¬ 
posing the public laws of the session, and made 
responsible also for their proper enactment. — 
The influence of the lobby in pressing private and 
local bills for personal ends has proved so for¬ 
midable an evil in the United States that many 
of the states of the Union, within a decade, have, 
by acts of constitutional conventions or regular 
amendments to their organic laws directly acted 
upon by the people, prohibited their legislative 
bodies from enacting special law^s in a variety 
of cases. The restriction in the state of New 
York is as follows: “The legislature shall not pass 
a private or local bill in any of the following cases; 
changing the names of persons; laying out, open¬ 
ing, altering, working or discontinuing roads, 
highways or alleys, or for draining swamps or 
other low lands ; locating or changing county 
seats; providing for changes of venue in civil or 
criminal cases; incorporating villages; providing 
for the election of members of boards of super¬ 
visors; selecting, drawing, summoning or impan¬ 
eling grand or petit jurors ; regulating the rate 
of interest on money; the opening and conduct¬ 
ing of elections or designating places of voting; 






LEGISLATION. 


creating, increasing or decreasing fees, percentage 
or allowances of public officers, during the term 
for which said officers are elected or appointed; 
granting to any corporation, association or indi¬ 
vidual the right to lay down railroad tracks; 
granting to any private corporation, association 
or individual any exclusive privilege, immunity 
or franchise whatever; providing for building, 
and chartering companies for such purposes, ex¬ 
cept on the Hudson river below Waterford, and 
on the East river, or over the waters forming a 
part of the boundaries of the state. The legisla¬ 
ture shall pass general laws providing for the 
cases enumerated in this section, and for all other 
cases which in its judgment may be provided for 
by general laws. But no law shall authorize the 
construction or operation of a street railroad ex¬ 
cept upon the condition that the consent of the 
owners of one-half in value of the property bound¬ 
ed on, and the consent also of the local authorities 
having the control of that portion of a street or 
highway upon which it is proposed to construct or 
operate such railroad be first obtained; or, in case 
the consent of such property owners can not be 
obtained, the general term of the supreme court, 
ill the district in which it is proposed to be 
constructed, may, upon application, appoint three 
commissioners, who shall determine, after a hear¬ 
ing of all parties interested, whether such railroad 
ought to be constructed or operated, and tlieir 
determination, confirmed by the court, may be 
taken in lieu of the consent of the property own¬ 
ers.”— This limitation of the power of the legis¬ 
lature to enact private and special laws creates in 
its turn an evil far greater than that which it was 
intended to remedy. Private and local legisla¬ 
tion is in itself not a bad thing. One of the ad¬ 
vantages of the common law is its adaptation to 
individual cases. It has infinite power of com¬ 
bining and appl 3 dng itself to changes of circum¬ 
stances and of cases. Any unbending, unyield¬ 
ing general rule becomes in time oppressive and 
mischievous. Equity jurisprudence has arisen 
simply for the purpose of making even judge- 
made common law subservient to the necessities 
of society and to the requirements of justice, 
which is the object of all law. —It is no demerit 
of modern legislation that it applies itself mi¬ 
nutely to special cases. It would in fact be the 
greatest merit of any system of laws that they 
varied exactly as every case varied in its elements. 
It is general and indiscriminating rules that con¬ 
stitute the harshness of any system of law—rules 
which, subjecting special clas.ses of persons to 
unintended and unforeseen oppression, require 
for their mitigation the arbitrary modifications of 
the judicial construction of courts of equity. 
The more a legislature is civilized, the more it 
measures and considers ditfereiices in each class 
of cases and adjusts the law to their varieties. In 
this process of modifying and adjusting the 
law to special cases, Conde, in his essay on legis¬ 
lative expression, says that “Theconstant action 
of the legislature and of the judiciary of England 


755 

has undeniably made a greater and better prog¬ 
ress than the institutions of any other countrv; 
and to desire a codification or simplification 
which should destroy these nice adjustments or 
diminish in any way the specialization of the 
law; or to propose arrangements to cripple or 
obstruct its future further extension of specific 
legislation, would be to sacrifice aptness and 
certainty in the law to verl)al generality, and to 
supplant the beneficent officiousness of the legis¬ 
lature by the despotic formalities of the method- 
izer,” This criticism upon resorting to the exer¬ 
cise of the power of general legislation instead of 
meeting the exception by special legislation, is 
fraught with special meaning to the people of 
the United States because their general legislation 
is not watched over by a body of hereditary leg¬ 
islators, as is that of England by the house of 
lords, or that powerful committee of the house 
of commons known as the ministry, charged with 
the duty of promoting the general legislation of a 
session. The general legislation of this country 
is in the hands of individual legislators, and by 
forbidding special legislation in a great number 
of cases by the recent constitutional changes, the 
whole body of general law is thrown into the 
arena of special interests, to be changed, modified 
or destroyed as special interests may dictate; so 
that the object which was heretofore sought in 
the state of New York and in other states by a 
special law is and will hereafter be sought lo be 
attained in large measure by a change in the gen¬ 
eral law to meet special cases, thereby creating 
special legislation in its worst form, to wit, gen¬ 
eral laws repealed, altered or modified to meet a 
special case or a special interest. Far better 
would it have been to have followed in that par¬ 
ticular the example of England in methodizing 
legislation. English legislation was not free 
from corruption and the lobby until methods 
were discovered and applied by which both the 
one and the other could be extirpated. As late 
as 1844 Mr. Ilcrapath, M. P., felt himself at lib¬ 
erty positively to a.ssert that members had not 
been merely canvassed to support a bill, but that 
large sums had been spent upon them to secure 
their support. The “Athenaeum” said, about that 
time, “ It is the fashion to assume that our legis¬ 
lators are not now open to pecuniary bribes; it 
may be so, but we must leave that question to 
be decided by our children’s children. If public 
rumor be not more than usually scandalous and 
false, there are some curious revelations yet in 
store for these youngsters, relating to railway 
bills.” One company was able lo boast that it 
had command of one hundred suffrages in the 
house of commons; and Francis, in his “History 
of the Railway,” says, “that members were 
personally canvassed, solicitations were made to 
peers, influences of the most delicate nature were 
used, promises were given to vote for special 
lines before the arguments were heard, advan¬ 
tages in all forms and phases were proposed, to 
suit the circumstances of some and the temper of 





756 


LEGISLATION. 


others. Letters of allotment were tempting; hu¬ 
man nature was frail; and the premium on five 
hundred shares irresistible. ” This pressure of pri¬ 
vate legislation upon parliament began, in time, 
seriously to interfere with the performance of its 
public duties, with the passage of general laws, 
and with the administration of the empire; and 
in 1847 a code of standing orders was adopted, 
which, together witli certain statutes as to costs 
and the establishment of the “Gazettes” and the 
notices for publication therein, now regulate 
practice in relation to private bills with the same 
completeness and detail, with the same careful 
regard as to the riglits of parties, as the practice 
in courts of law is regulated by the supreme court 
judicature act, or by our own codes of procedure. 
Fully to realize this very complete system, it is 
well to follow the course of a private bill through 
the palace of St. Stephen’s. Every bill conferring 
any power on a special borough, city or town, or 
upon any corporation or individual or set of indi¬ 
viduals, or amending any i)owers already con¬ 
ferred, is regarded as a private bill; and even 
bills conferring powers on the metropolitan board 
of works arc regarded as private bills; the bills 
in relation to the corporation ot London are clas¬ 
sified as private bills, and indeed all bills which 
in the United States come under the designation 
of special and local bills, are denominated pri¬ 
vate bills, and must pass through the course pre¬ 
scribed by the standing rules.—These bills are 
divided into two classes. The first class embraces 
all subjects of enlarging or altering the powers 
of corporations; or which may relate to a church 
or a chapel building, burial ground, to cities or 
towns, to paving and lighting, to county rates, 
to ferries, to fisheries, to gas works, to lands, to 
letters patent, to local courts, to markets, to police, 
to poor rates. The second class includes the 
making or maintenance of any aqueduct, arch¬ 
way, bridge, canal, cut, dock, drainage, embank¬ 
ment, ferry, harbor, navigation, pier, court, rail¬ 
way, reservoir, sewer, street, tramway, turnpike, 
tunnel or waterworks; in fewer words, the second 
class embraces all such bills as involve the exer¬ 
cise of the right of eminent domain, Hills of 
both these classes must, before parliament meets, 
be preceded by a notice of intention to ajiply for 
the powers they contain, together with the time 
when copies of the bill will be deposited in the 
private bills office in the house of commons. If 
it is a bill of the second class, this deposit must 
be accompanied by the submission of an accurate 
engineering and topographical surve}" of the lands 
intended to be taken, together with the names of 
the owners, the value of the lands, and an estimate 
of cost, A notice long in advance of the session 
must be published in the London, Dublin or Edin¬ 
burgh “Gazette,” if it affect an English, Iiish or 
Scottish interest, for six weeks prior to the deposit 
of the bill. If the bill is one of the second chiss it 
must also be published in a newspaper having the 
largest circulation at the nearest point where such 
laud is to be affected or taken. A list must also be 


deposited of the names of tlie owners, lessees and 
occupiers of any [iroperty which is to be taken 
or affected by the powers intended to be granted 
by the bill. These notices of the intention to 
apply are published in the month/of November. 

It will be remembered that {larlianient generally 
meets in the early part of February, unless special¬ 
ly convened. ’Fvvo copies of the bill, and in the 
case of a bill belonging to the second class, two 
copies of the plan, a book of reference in rela¬ 
tion to the plan, and a list of owners, a coj)y of the 
list of owners, and copy of tlie “Gazette” notice, 
must be deposited in the office of the clerk of the 
peace in every county or district wherein the im¬ 
provement is to be made oi‘ the powers to be ex¬ 
ercised; one copy of each of the same documents 
at the office of the board of trade; one cop 3 ^ in the 
l)arliament office; one copy in the private bills 
office of the house of commons; a copy of the 
plans and sections at the parish clerk’s office; and 
in the event of its being any churchyard or burial 
ground bill, or if any commonable land is pro¬ 
posed to be interfered with, a cop}' must likewise 
be deposited in the office of the secretary of state 
for the home department. On or before Dec. 15 
notice must be personally served on the owners, 
lessees and occupiers of all lauds, houses and • 
prenuses which are to be affected by the provis¬ 
ions of the bill; on or before Dec. 17 a printed 
copy of the bill must be deposited at the parlia¬ 
ment office of the house of lords; and on or before 
Dec. 21 a printed copy of the bill, with the peti- 
1,ion annexed, at the private bills office of the 
house of commons, and the private bills office of 
tlie board of trade. And, in addition to all this, 
in the case of any canal, railway or tramway bill, 
or one relating to any public work, requiring the 
exercise of the right of enunent domain, there 
must be deposited, on or before Dec. 31, an esti¬ 
mate of expenses signed in duplicate, one for the 
lords and the other for the commons, at the private 
bills office, and at the pai liament office. An eidire 
list of owners and occupiers must be deposited in 
the house of lords in the same form as that in the 
house of commons on or before Jan. 14, a deposit 
of a sum of money equal to 5 per cent, of the 
estimates must be made in the high court of jus¬ 
tice, and a deposit must be made at tlie time 
of the filing of the papers to pa}'^ the expenses of 
the bills in llie two houses of parliament.—If 
the bill is unoi)posed, it is taken iqi by officers 
called examiners, who begin their work on or 
about Jan. 18, according to such directions as 
shall have been made bjM he speaker. Seven da^^s’ 
notice of the proposed examination of the petition 
and bill is sent out; if the petitioners do not then 
appear before the examiners the bill is stricken 
out. If the petitioners ai)pear, which appearance 
is generally imide Iq'’ the parliamentary agent or 
solicitor, a judicial inquiry is then made whether 
the provisions of the standing orders as to notice, 
publication, deposits of plans and moneys have 
all been duly complied with, and whether the 
necessary disbursements for the consideration of 




LEGISLATION. 


757 


the bill have been deposited, which vary in the 
tirst instance from £20 to £80. If upon such 
examination it appears lliat the rules of procedure 
have not been complied with, the bill is thrown 
out, with the indorsement “ standing orders not 
complied with,” and nothing further can lx; done 
with the bill during that session. A (pialified or 
conditional opposition maybe made by the adver¬ 
saries to it, upon the (piestion of non-compliance 
with the standing orders, so as to avoid the neces¬ 
sity of a trial of the bill on its merits. If it can 
be shown before the examiners that either through 
negligence or fraud the promoters of the bill have 
failed to comply with the parliamentary recpiire- 
inents, the bill is thrown out in the same manner 
as though the examiners had discovered the defects 
by their unaided inquiry. Assuming that the 
examiners tind that the promoters have fully 
complied with all these preliminary requirements, 
the private bill is then referred to the chairman of 
the committee of ways and means of the house, 
who, at a conference on private and local bills 
with the chairman of committees of the house of 
lords, determines in which house of parliament 
the bills shall respectively be first considered, and 
in what order they shall be considered; upon this 
determination neither parties nor counsel are 
heard. Thereupf)n the chairman of the committee 
of ways and means, with the assistance of the coun¬ 
sel to the speaker, examines all the private bills 
independently of the question whether opposed 
or unopposed, and calls the attention of the house 
and also that of the chairman of committees to 
all points which may appear to him to require it; 
and at any time after a private bill has been re¬ 
ferred to a committee, the chairman of the com¬ 
mittee of ways and means is at liberty to report 
to the house any special suggestions relative 
thereto which occur to him to require it, and to 
inform the house that in his opinion any unop¬ 
posed private bill should be treated as though it 
had been opposed, and evidence should be taken 
to prove the petition and clauses affirmatively. — 
Before the committee acts upon a private bill, 
wliether opposed or unopposed, it is again sub¬ 
mitted to the chairman of the lords committees 
and his counsel, who amends it, alters it, or re¬ 
casts it as he ma}' see fit; or if he finds that it is 
inexpedient, on the whole, that the bill should 
pass, he indorses it that “ the lords will not con¬ 
cur in the passage of this bill,” and all further 
progre^ss thereon is arrestcal, i)ecause the com¬ 
mons, since the cxlsjcnce of tin* standing orders, 
liave rarely seen fit to urge upon the lords the 
passage of any })i ivate bill when so high an au¬ 
thority as Lord Ihalesdale, who has been for 
many years the cliairinan of its committees, sig- 
nities tluj disinclination of his chamber to con¬ 
sider a special pidvate bill. Hence the sugges¬ 
tions that come down from Lord Redesdale’s 
committee to the promoters or to the house of 
commons are generally incorporated in the bill 
in the way of amendments almost without ques¬ 
tion, as the result of the scrutiny of an upright. 


careful and conscientious jurist. The bill is then 
referred to committee; the committee carefully 
consider its provisions, call in the aid of the 
parliamentary agent or counsel’ who has indorsed 
the bill, to explain it, assist in its modification if 
modifications are suggested, and the bill is then 
re[)orted to the house, favorably or adversely, as 
tlie committee may determine. If disapproved of 
by the committee, as a general rule there is an 
end to the bill. While the jiower really exists on 
the part of the house to disagree with the report 
of the committee, they recognize the fact that a 
disagreement is inexpedient as against a commit¬ 
tee who have examined with judicial care and 
impartiality the provisions of the bill. — The 
chairman of the ways and means committee, and 
three other members, are appointed by the speaker 
as referees, who constitute tribunals for the trial 
of opposed bills. They have power to suggest 
the increase of their number and to constitute 
subcommittees. Upon special bills committees 
those men are generally selected who are specially 
fitted as experts. They enter into an examina¬ 
tion of the question .whether the bill is to be¬ 
come a law, and if so, under what modifications, 
restrictions and safeguards. This committee, 
therefore, enters upon a real trial of the peti¬ 
tions for and the counter petitions against pri¬ 
vate bills, to aid the house in determining its 
course.— The chairmen of these various commit¬ 
tees of selection meet together and form a calen¬ 
dar of opi)osed bills. In the case of bills for 
wdiich there are regular standing committees 
of the house, such as railway and canal bills, 
such committees try them, and do so acting under 
the suggestions, whether opposed or unopposed, 
of the l)oard of trade. The standing commit¬ 
tees who have in the first instance the power to 
try the bill, if they see fit so to do, can either do 
so or place it u])on the general calendar of these 
courts thus constituted for the trial of opposed 
cases. The trial is, as already observed, upon is¬ 
sues joined upon the petition for the bill and its 
several clauses, by a counter petition against it, 
in which the counter petitioners deny the facts 
set forth in the petition and {jsk that they may be 
heard in opposition to the bill. The opposed bill 
is treated precisely as an unopposed bill as to all 
the preliminary stages; it passes through the 
hands of examiners as to conqfiiance with stand¬ 
ing orders, tin; scrutiny of the chairman of com¬ 
mittees of the house of lords and the house of 
commons, etc. When once on the calendar of the 
general or special committee to which the same is 
referred, it takes its turn for hearing precisely as 
a cause which is put upon the calendar of the 
court awaits its time for trial.—If, as sometimes 
happens, the private bill is of considerable pub¬ 
lic importance, when the chairman of the ways 
and means committee of the house of commons 
seeks a conference with the chairman of the com¬ 
mittee of the house of lords for the purpose of 
determining which bills should be considered first 
in the house of lords and which in the house of 



758 


LEGISLATION. 


commons, then such a bill, if deemed of suffi¬ 
cient public importance, is by the chairman sim¬ 
ultaneously introduced in the house of commons 
and lords and referred to a special joint com¬ 
mittee of the houses, who thereupon proceed to 
try the petition for the bjll as a joint court. 
Evidence is then taken precisely as in a court 
of justice, although somewhat greater latitude is 
allowed both to the counsel and to the court. 
The rule as to hearsay testimony is also some¬ 
what relaxed, but documents are produced, maps 
examined, experts heard, elaborate arguments of 
counsel delivered, and every adverse interest 
allowed a hearing; suggestions are made with 
reference to amendment, and all proceedings are 
precisely in the same form as though these com¬ 
mittee men were judges. —No man can become a 
member of the committee to sit upon a special 
bill without making a declaration in writing that 
neither the borough that he represents nor he 
himself individually has an interest in the bill to 
be considered, and that he will hear all the evi¬ 
dence before voting upon the acceptance or re¬ 
jection of the bill; thus again recognizing the 
judicial character of the determination of the 
committee, and applying to each special case that 
general rule which applies to the judiciary that 
they are not permitted to sit in cases in which 
they have a personal interest. —To secure the full 
attendance of members of committees it is a stand¬ 
ing rule that it can transact no business if two 
or more of its members are absent. And if a 
member absents himself more than twice from a 
committee, his name is taken off that committee, 
and that of some other member is substituted; 
and when any incorporated company presents 
itself before parliament to have any of its powers 
extended, altered or amended, any body of share¬ 
holders, although in the minority, may be heard 
in opposition to such bill. — At any stage of the 
proceedings if the promoters of the bill abandon 
it; the bill is disregarded and thrown out, and the 
expense incurred down to the point of abandon¬ 
ment is lost to the parties who have promoted the 
bill. By the 28th and 29th Victoria a complete 
system of costs was established in relation to con¬ 
tests before committees, so as to make the pro¬ 
ceedings still more analogous to those of a court 
of justice. This gives the power to the commit¬ 
tee on a private bill to compel the petitioners to 
pay the costs where the committee find that the 
preamble of the petition is not proved, or if on 
the motion of the opposition any provision for the 
protection of such opposing petitioner is inserted, 
or whenever the committee strike out or alter 
any provision for the protection of the opposing 
petitioner, and report that the opposing petitioner 
has been unreasonably or vexatiously subjected 
to the necessity of defending his rights, by reason 
of the promoters of the bill not carefully guard¬ 
ing the same in the bill as filed. On the other 
hand, when the committee report that the oppo¬ 
sition has been vexatious and that the promoters 
of the bill should not have been opposed, so much 


of the costs and expenses as relate to the trial of 
the bill may be thrown upon the opposing ])eti- 
tioners. This act, however, very wisely provides 
that no land owner, who at his own risk and 
charge in good faith opposes a bill which pro¬ 
poses to take any of his property,shall be mulcted 
in costs because of the non-success of his opposi¬ 
tion.— The expenses in the w^ay of disbursements 
for filing, for examiner’s fees, etc., attending the 
passage of an unopposed bill, are scarcely ever 
less than £200. The money is deposited and 
paid at the various stages of the bill as prelimi¬ 
nary to its being furthermonsidered and carried 
through the house; and these disbursements pay 
the whole expense of Darliament—its stationery 
for public purposes, its speaker’s special counsel, 
its parliamentary draughtsman, etc., as well as 
the expenses incidental to the consideration of the 
bill by the committee. —All bills are subjected to 
being redrafted by officers under the supervision 
of the speaker’s counsel — the parliamentary 
draughtsman. This speaker’s counsel is general¬ 
ly a lawyer of great dignity and attainments. 
Sir Henry Thring has for many years held this 
position, and if the bill in question is one to 
which public attention has been drawn, the prob¬ 
abilities are that it is submitted to his scrutiny 
and revision, in addition to the revision and scru¬ 
tiny of Lord Bedesdale, the chairman of commit¬ 
tee of house of commons and the committee that 
tries the bill. England’s course of procedure, by 
bringing method into its legislation, has complete¬ 
ly done away with the lobby in the sense that it 
is known in the United States. There is a differ¬ 
ence of the same character between such a sys¬ 
tem and the course of legislative action in the 
vast majority of the states of the Union that there 
is between the procedure before the suj)reme 
court of the United States and before some court 
in southern Russia or Turkey.— When commit¬ 
tees of parliament became courts, a heavy draft 
was made upon the Westminster bar to supply 
this new demand for special training for inquiry 
and debate, and numerous lawyers soon devoted 
themselves exclusively to the trial and argument 
of causes before the parliamentary bar. A new 
class of solicitors, known as parliamentary agents, 
came into existence, drawn from the same classes 
of the community as those which supply the 
practitioners at the chancery or common law 
bars. These agents prepare briefs for counsel, 
draw the bills and attend to all the practice 
part of private bills legislation. Honors and dis¬ 
tinction are ^von as much at the parliamentary 
as at the law and equity bars, and the silk gown 
is at St. Stephen’s, as at Westminster, the reward 
of merit. Parliamentary lawyers are not so 
readily transferred to the bench or the woolsack 
as are those who practice in the courts of just¬ 
ice; their emoluments are larger, however; hence 
the parliamentary practitioner acquires pecuni¬ 
ary fortune more readily than his brethren who 
practice in the courts of justice, and thereby feels 
himself somewhat compensated for not being 






LEGISLATION. 


759 


able to look forward to the comfort, ease and 
social distinction which accompany English ju¬ 
dicial positions. — England, therefore, has re¬ 
lieved itself from the pressure which the modern 
corporations and the grovrth of wealth have 
brought upon its legislative functions, by submit¬ 
ting their demands to so careful a scrutiny and 
trial, and surrounding property with such safe¬ 
guards that it can dispense with written constitu¬ 
tional guarantees, too frequently inoperative in 
the United States, to prevent encroachment of 
accumulated and corporate wealth upon the rights 
of property not thus consolidated. — A word upon 
the subject of Godijicaiion .— There are two class¬ 
es of codifications: one, codification of legislative 
enactments; the other, codification of common 
law. The codification of legislative enactments, 
when legislatio^i has become so constantly active, 
varied and so complex, arising from so many dif¬ 
ferent motives, and is so irresponsible as in the 
United States, is essential from time to time for 
the purpose of producing harmonious legislation. 
The question is not open to us as to whether there 
shall be codes, but simply who shall become cod¬ 
ifiers of legislation of this description, and there¬ 
fore every state must from time to time pass new 
laws which are in the nature of codifications of 
the pre-existing ones, simply for the purpose of 
enabling their courts of justice to determine what 
the law is. An illustration how mischievous such 
a slate of things may become, is the fact that the 
court of appeals in the state of New York was 
compelled in 1875 to declare that it was impossible 
for it to determine what the condition of the law 
in relation to taxation and assessment, applicable 
to the cities of New York and Brooklyn, then 
was, in consequence of the number and the cha¬ 
otic condition of the laws in that regard. Codifi¬ 
cation of the common law is a matter of more 
delicacy, requiring a higher order of intellect, and 
should be undertaken only if the codifier is in¬ 
tellectually the superior of the judge; otherwise 
greater mischief is done by codification of that 
character than by the general development of the 
law at the hands of judges. — Legislation is a 
practical art, and not a science. The ordinary 
objection that is made to codes, that they are cast- 
irou systems, is only true if the minds which 
formulate the codes are of the cast-iron class. If, 
on the one hand, they have intelligence carefully 
to state the common law or equitable principle in 
well-chosen legal phraseology, to limit it and ap¬ 
ply it to cases already decided, and to leave the 
courts free to apply the principle to whatever fur¬ 
ther cases may arise, codification is an unmixed 
good. If, on the other hand, narrow-minded or 
ignorant men undertake the codification of the 
people’s laws, such codification will be mischiev¬ 
ous. It is with formulating the laws of the peo¬ 
ple as it is with the administration of justice—as 
much depends upon the persons who are to ad¬ 
minister or to codify as upon the subject matter 
of the administration or codification.—An at¬ 
tempt has in recent years been made to deal with 


the mischief of constant and unwise changes in 
the law by the adoption of constitutional amend¬ 
ments, by virtue of which, legislative bodies meet 
biennially instead of annually. This is the merest 
refuge of imbecility against the evil of bad legis¬ 
lation. The only parallel for this treatment of 
political distempers is to be found in the treat¬ 
ment of physical ailments which prevailed in the 
good old days of Doctor Sangrado, who argued, 
“ When man is sick, his blood is bad; tap him of 
half his blood, and he is about half as sick as he 
was.” Bad legislation comes from the legislature. 
Have the legislature meet but half the number of 
days, and you have but half the amount of bad 
legislation! If the legislature were convened sim¬ 
ply for the purpose of doing mischief instead of 
doing good, this argument would be true, but 
then it would be wdser not to have them meet at 
all. The legislative function is one of the most 
important and useful that can be administered by 
man. It is the inadequacy of the members of our 
legislative bodies for the work they have in hand, 
and the bad methods they have adopted for the 
performance of that work, which creates the mis¬ 
chief. Let us secure better qualified men and im¬ 
prove the methods, and we shall regard the meet¬ 
ing of our legislative bodies with expectations 
of benefit instead of with fear and dread. Had 
some one proposed at the time of the corrup¬ 
tion of the judiciary in the city of New' York 
(1870-72), that, for the purpose of remedying the 
evil of improper and corrupt judicial judgments, 
Judge Barnard should hold but four terms in the 
3 ^ear instead of eight, such a reformer would have 
had his propo.sition laughed down. The propo¬ 
sition of biennial legislatures instead of annual 
legislatures, although it finds more favor with the 
community than the remedial measure of our im¬ 
agined New York reformer, is not a whit more 
intelligent as a cure for our radically defective 
methods of legislation. The only route to reform 
as to this subject lies in improving the political 
methods of the United States so as to secure a 
better class of legislators; methodizing the work 
of the sessions by safeguards to interests affected 
by the proper trials of bills; and finally, fixing 
responsibility for legislation by the creation, for 
the nation and in each state, of proper supervi¬ 
sory bodies to which proposed laws shall be sub¬ 
mitted and acted upon by men capable of being- 
charged with so important a task as the preserva¬ 
tion, amending and modifjdng the ])ublic laws of 
a commonwealth. Simon Sterne. 

LEGISLATURE. (See Assembly, Congress, 
House op Commons, House of Lords, House 
OP Representatives, Legislation.) 

LETTERS PATENT. (See Patents.) 

LIBERALISM. The word liberalism is of 
modern, almost of contemporary, introduction; but 
the thing thus designated is ancient, and springs 
from human nature itself, and from the very best 




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